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De facto relationships in the context of estate planning

A de facto relationship refers to a relationship between two individuals who are not legally married, but live together and function as a married couple. The criteria for establishing a de facto relationship can vary depending on jurisdiction.

In Queensland, in order for someone to be considered a deceased’s person’s spouse under the Succession Act 1981 (Qld) (the Act), they must have been residing with the deceased as a couple on a “genuine domestic basis” for a period of 2 years ending on the deceased’s death. 

What are the elements?

In Queensland, for the purposes of estate administration and intestacy (when a person dies without a valid will), a de facto relationship is recognised if the couple meets certain criteria.

The key elements that are considered by the Court when weighing up whether a couple reside together on a “genuine domestic basis” include, but are not limited to:

  1. the nature and extent of their common residence;
  2. the length of their relationship;
  3. whether or not a sexual relationship exists or existed;
  4. the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. their ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life, including the care and support of each other;
  7. the care and support of children;
  8. the performance of household tasks; and
  9. the reputation and public aspects of their relationship.

Unfortunately, there is no hard and fast rule to determine whether a couple reside together on a genuine domestic basis. 

In determining whether a couple resided together on a genuine domestic basis, the Court weighs the above elements against each other to make a determination on the overall circumstances.

Therefore, the elements listed above are not exclusive in determining if a de facto relationship existed, however, it does provide guidance as to what needs to be proven to establish a de facto relationship.

Considerations in estate planning

In the context of estate planning, understanding the potential risks against your estate, particularly in the case of a de facto relationship, is crucial.

Some key considerations include:

  • Family provision claims:

In Queensland, eligible individuals may be able to make a family provision claim under the Act. This includes spouses (including de facto partners) children (including stepchildren) and certain other dependents. If a de facto partner believes they have not been adequately provided for in the deceased’s Will, they may be entitled to make a claim for provision.

  • Recognition of de facto relationships:

The legal recognition of a de facto relationship in Queensland can affect the distribution of assets and inheritance rights. If one partner in a de facto relationship dies without a Will, the surviving partner may be entitled to a share of the deceased partner’s estate. If a de facto relationship is not legally recognised, the surviving partner may face challenges in making a claim against the estate. However, if the relationship meets the criteria set out above, the partner may have a legal basis for making a claim.

  • Documenting the relationship:

To reduce the risk of claims and disputes, it is advisable to document the de facto relationship and any agreements between partners. This may include maintaining joint bank accounts, property ownership documents, and evidence of financial interdependence.

  • Having a valid Will:

Creating a valid and up-to-date Will is essential for estate planning. If a person dies without a Will (intestate), the laws of intestacy in Queensland will dictate the distribution of assets. Having a Will allows the deceased to specify how they want their estate to be distributed, potentially reducing the risk of disputes.

  • Reviewing and updating estate plans:

Life circumstances change and it is important to review and update your estate plan regularly. This is especially true if there are changes in the de facto relationship, such as separation or the birth of children.

  • Consideration of other relationships:

If a person has multiple relationships or dependents, it’s important to carefully consider how the estate will be distributed among them to avoid potential conflicts. People should also be mindful of the difference between separation and divorce when it comes to your estate planning and the risks associated.

When in doubt, seek advice

Estate planning can be complex process, and the specific risks and considerations can vary based on individual circumstances. It is crucial to seek legal advice specific to your situation, as individual circumstances can vary. Consulting with a solicitor will help you understand how the law applies to your particular circumstances and ensure that your estate planning arrangements align with your intentions.

Do not hesitate to contact us to provide guidance and to structure your estate plan to minimise the risk of claims and ensure your intentions are clear.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Duncan MacDougall

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